On January 27, 1955, and on July 12, 1956, by two takings, the respondent (the authority) took by eminent domain in the aggregate 1.37 acres of the petitioner's large
The dam had formerly been used to hold back a pond, covering about twenty-five acres. The dam, however, had been broken "possibly twenty years ago" for a distance of "twenty-five to thirty feet wide," and the bed of the old pond had grown up to brush, alders, and other vegetation. A brook "with a fast ... heavy flow" ran through the land.
After the takings, about half the dam was on the petitioner's land and half on the land of the authority. Of the "breached portion of the dam," the authority thereafter owned one third and the petitioner two thirds, but "now you couldn't fill in the breached portion of the dam to stop the water without going on land of the toll road; ... you would have to construct a new dam." The spillway was wholly taken. An engineering witness testified that the "cost of repairing the old breach" in the dam would be $4,000.
These facts could have been found from the evidence at a trial of a petition for assessment of the damages arising from the takings. A verdict of $2,000 for the petitioner was returned. The petitioner's exceptions are to the action of the trial judge in excluding, or striking from the record, certain evidence offered in behalf of the petitioner.
1. The petitioner testified that the fair market value of his property before the takings was $50,000 and after the takings was $3,000; that he planned "to put in camp sites
An owner of real estate or personal property having adequate knowledge of his property may express an opinion as to its value. Menici v. Orton Crane & Shovel Co. 285 Mass. 499, 503-505. Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy. 335 Mass. 189, 198. See Wenton v. Commonwealth, 335 Mass. 78, 82-83. Cf. Rubin v. Arlington, 327 Mass. 382, 383-385. These decisions establish that whether the witness has the necessary knowledge about his property to enable him to express an opinion about its market value is a preliminary question of fact for
Here the petitioner had lived in Leicester (not far from Sturbridge) for forty-eight years; he had owned the property from 1937 on; his father had owned it from 1918 to 1926; he "was acquainted with the property more or less for all his life"; he had made plans and surveys for its development, and had investigated in 1939, 1949, 1950, and 1952 the cost of repairing the breach in the dam and of clearing and improving the property; and he had visited another development using land adjoining a pond for a purpose similar to that for which he thought his own land was adapted.
We do not interpret the action of the judge in striking out the petitioner's testimony on market value as based on the ground that the petitioner's knowledge of the property was inadequate. He appears to have done this because he felt that the petitioner's opinion (about the market value of the property taken and the depreciation in market value of the remaining property) was too dependent upon unexecuted plans for future development of the property. Indeed much testimony, which the petitioner was not permitted to introduce, or which was struck from the record, was in form descriptive of a particular project for development of the land for camp sites on which at most a partial survey had been made prior to the taking. Evidence about the details of this particular unexecuted project, as such (as distinguished from evidence about the contribution to the then existing market value caused by the possibility of using the property in connection with a restored pond), was not admissible. See Greenspan v. County of Norfolk, 264 Mass. 9, 12-13; Tigar v. Mystic River Bridge Authy. 329 Mass. 514,
2. Similar considerations lead us to hold that the trial judge improperly struck from the record the testimony of one Maher, a real estate expert of eighteen years' experience in the area as an appraiser and a developer of property of relevant types. He had "sold property on probably twelve or fifteen ponds ... in Worcester County" and had examined the petitioner's property in 1955, before the turnpike was built, and in 1957. His testimony that the property was worth $46,600 before the takings and $10,600 thereafter was admissible, and he was entitled to take into account in forming his opinion, and to state, the various potential uses of the land, which he regarded as practicable and reasonable, so far as they contributed to the market value of the property existing at the time of the takings. He could properly take into consideration the value, if any, contributed by the practicability of repairing the dam and restoring the pond, and using the adjacent land in connection with such a pond.
3. The petitioner's counsel was not allowed to cross-examine a real estate expert, called by the authority, about whether "a buyer looking for property might be impressed by the fact that there was a dam there of some three hundred and seventy feet, even though it had a twenty foot
4. A qualified engineer was asked what the reasonable charge would be for filling the breach in the dam. Although the question was originally excluded, this action was not prejudicial for the engineer was permitted later to testify that "the cost of repairing the old breach" in the dam would be $4,000.
5. The petitioner excepted to the action of the judge in reading to the jury excerpts from earlier opinions of this court in explanation of his action in excluding or striking certain evidence. The petitioner's argument does not persuade us that this was in any degree prejudicial. The practice may involve risk of confusing the jury by isolated and incomplete instructions, and of placing undue emphasis upon particular aspects of the trial. The matter, however, is within the realm of the trial judge's discretion in the absence of a showing that the instruction was incorrect or inapplicable to the particular aspect of the case.